FIFTH SECTION
CASE OF
GORBATENKO v. UKRAINE
(Application no.
25209/06)
JUDGMENT
STRASBOURG
28 November 2013
This judgment will become final in the circumstances set
out in Article 44 § 2 of the Convention. It may be subject to editorial
revision.
In the case of Gorbatenko v. Ukraine,
The European Court of Human
Rights (Fifth Section), sitting as a Chamber composed of:
Mark
Villiger, President,
Angelika Nußberger,
Boštjan M. Zupančič,
Ganna Yudkivska,
André Potocki,
Paul Lemmens,
Aleš Pejchal, judges,
and Claudia Westerdiek, Section
Registrar,
Having deliberated in private on 5 November 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
25209/06) against Ukraine lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Ukrainian national, Mr Pavel Vladimirovich Gorbatenko (“the
applicant”), on 9 June 2006.
The applicant, who had been granted legal aid,
was represented by Ms Y.N. Ashchenko, a lawyer practising in Kharkiv. The Ukrainian
Government (“the Government”) were represented by their Agent, most recently
Mr Nazar Kulchytskyy.
The applicant complained, in particular, about
the conditions of his detention in the Sevastopol ITT, the Dnipropetrovsk SIZO
and the Kharkiv SIZO. He also complained about the length of the first set of criminal
proceedings against him.
On 1 August 2012 the application was communicated
to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1978 and is currently
serving a sentence of life imprisonment in the Kharkiv Pre-Trial Detention
Centre (SIZO).
In November 2003 the applicant met and started
cohabiting with Ms T.
A. First set of criminal proceedings against the
applicant
On 2 June 2004 Mr D., a relative of Ms T.,
complained to the police that the applicant had robbed him of 1,100 Ukrainian
hryvnias (UAH) (equivalent to about 165 euros (EUR)).
In late July 2004 (the exact date is unknown) a
TV set, an iron and a radio were stolen from the household of Ms G., an
acquaintance of Ms T. Ms G. was away on a trip at the time and discovered
the theft upon her return home a few days later. As the investigation later established,
the theft had been committed by the applicant and Ms T.
On 8 August 2004 Mr D. brought another complaint before
the police, this time that the applicant and Ms T. had robbed him of UAH 2,700
(equivalent to about EUR 400) and two electric kettles.
The three incidents in question took place in
the Kharkiv region. The investigations into the incidents were joined into one
criminal case against the applicant and Ms T. on suspicion of theft and
robbery. At first, the suspects’ whereabouts could not be identified.
In August 2004 the applicant was arrested by the
Kharkiv police. The exact date of his arrest is unclear. According to the
applicant, it was 10 August 2004. He did not, however, specify the time or
circumstances of his arrest. As indicated by the investigator in his
application for the applicant’s pre-trial detention (see paragraph 13 below),
it was 11 August 2004. This was also the date from which the term of the
applicant’s imprisonment was calculated according to the verdict of 13 April
2005 (see paragraph 59 below). However, according to the explanations of officers
from the Kharkiv Police Department, it was on 12 August 2004, at about
2 a.m. (see paragraph 67 below). Also, as indicated in the verdict of
9 November 2011, the applicant was arrested on 12 August (see
paragraph 29 below). There is no copy of the arrest report in the case
file before the Court.
According to the applicant, the Kharkiv police
officers ill-treated him in the Merefa Temporary Detention Facility (ITT) with
a view to making him confess to the alleged theft and robberies (for a more
detailed account see paragraph 63 below). As a result, the applicant made a statement
of confession, allegedly as dictated by the investigator.
On 13 August 2004 the Kharkiv District Court - in
a hearing which the applicant attended - remanded him in custody pending trial,
having allowed an application to that end by the investigator.
On the same date the applicant had his
procedural rights explained to him and signed a waiver of legal assistance.
On 17 August 2004 Ms T. was detained, too. According
to her statements, she and the applicant had committed the theft in the
household of Ms G. and the second robbery of Mr D. As to the first robbery, Ms
T. submitted that, as far as she knew, the applicant had merely borrowed some
money from Mr D. on 2 June 2004.
On 31 August 2004 the applicant was indicted.
On 9 September 2004 the case was referred to the
Kharkiv District Court for trial.
As the defendants had been transferred to
Sevastopol on 20 September 2004 in order to attend the second set of proceedings
(see paragraphs 40-62 below), no hearings took place until 11 July 2005.
On 11 July 2005 the hearing was adjourned until 8 September
2005, as the court had allowed Ms T.’s request for the appointment of a lawyer.
Two more adjournments followed, the second one
being until 19 December 2005, owing to the absence of the victims and the
witnesses, whose obligatory presence the police were ordered to guarantee.
There is no information in the case file on any
developments in the first set of proceedings until July 2009.
On 24 July 2009 the judge in charge of the case withdrew,
apparently owing to the fact that the applicant had initiated proceedings for
damages against him in August 2008. The applicant’s claim was eventually
dismissed on 7 December 2009.
On 9 March 2011 the case was reassigned to
another judge.
On 26 May 2011 the applicant was taken to the
Kharkiv SIZO.
On 3, 5, 9 and 12 August 2011 he was given
access to the case file. He requested more time, but the court rejected this
request as unjustified. It noted that the applicant had been unreasonably slow,
studying only about twenty pages per day, and that one such extension had
already been granted to him.
On 2 September 2011 the applicant sought the replacement
of the lawyer appointed for him (it is not known when the applicant started to
be represented by a lawyer in this set of proceedings). His request was
allowed.
Also on 2 September 2011, the applicant
submitted at the court hearing that he had been ill-treated following his
arrest on 10 August 2004. The prosecutor participating in the hearing
considered this to be a serious allegation which had to be duly investigated.
He therefore invited the court to instruct the prosecution authorities to
investigate the matter.
On the same date, the Kharkiv District Court instructed
the Kharkiv Inter-District Prosecutor’s Office to investigate the applicant’s
allegation of ill-treatment (for more details see paragraph 70 below).
On 9 November 2011 the Kharkiv District Court
found the applicant guilty of theft and two counts of robbery and sentenced him
to five years’ imprisonment to be calculated from 12 August 2004 as indicated
in the arrest report. That sentence was absorbed by the sentence of life
imprisonment imposed in the judgment of 13 April 2005 (see paragraph 59 below).
Relying on the ruling of Kharkiv Inter-District
Prosecutor’s Office of 24 September 2011 (see paragraph 71 below), the trial
court dismissed as unsubstantiated the applicant’s complaint of ill-treatment
in police custody.
The applicant appealed. He complained that he
had not had sufficient time for studying the case file, that the lawyer
appointed by the court had not performed properly, that his father had not been
allowed to represent him in the proceedings, and that he had been deprived of
his right to submit a final plea as he had not been aware of the hearing date
and had not been prepared. He also complained that he had been arrested on 10 August
2004, while the official date of his arrest was recorded as 12 August
2004. The applicant reiterated the allegation that he had been ill-treated by
the Kharkiv police following his arrest.
The prosecutor also appealed. He argued that the
applicant had not in fact been provided with a proper opportunity to submit a
final plea, and that this warranted a retrial.
On 11, 13, 17 and 19 January 2012 the applicant
was given access to the case file.
On 19 June 2012 the Kharkiv Regional Court of
Appeal quashed the judgment of 9 November 2011 and remitted the case to
the first-instance court for a fresh examination, having found that the
applicant had indeed not been allowed to make a final plea.
On 7 August 2012, during a hearing in the
Kharkiv District Court, the applicant requested that a further investigation be
carried out in respect of his complaint of ill-treatment. He noted that he had
been forced to confess to the theft and two counts of robbery, as well as the murder
of a certain taxi driver. Later, however, the investigator had made him delete
the incident regarding the taxi driver from the confession.
On the same date, the court asked the Kharkiv Inter-District
Prosecutor’s Office to investigate the applicant’s allegation of ill-treatment once
again. The investigation results are summarised in paragraphs 73-77 below.
On 16 August 2012 the hearing was adjourned owing
to the absence of the victims and witnesses.
On 22 August 2012 there was a further
adjournment until 27 September 2012.
The Court has not been informed by the parties
of any further developments as regards this set of proceedings.
B. Second set of criminal proceedings against the
applicant
During an unspecified period at the end of July
and the beginning of August 2004, the applicant and Ms T. were in Sevastopol
for a seaside holiday.
On the evening of 2 August 2004 there was a fire
in a small country cottage (an illegal construction without electricity) in the
village of Katcha, in the suburbs of Sevastopol. The dead body of the owner, Mr
P., was discovered on the path leading to the building. His partner, Ms S., was
discovered still alive next to his body. She died in the ambulance on the way
to hospital (for more details see paragraph 59 below).
On 3 August 2004 the Sevastopol police launched a
criminal investigation into the matter.
It is not known when and why the police started
to suspect the applicant.
According to the applicant, on 15 August 2004 the
Sevastopol police visited and questioned him in the Merefa ITT. He allegedly
confessed to the infliction of fatal injuries on Mr P. and Ms S. and to setting
their property on fire. There is no reference to the applicant’s statements of
that date, or to the fact that he gave such statements, in any of the documents
in the case file.
On 17 August 2004 Ms T. submitted, during her
questioning by the Kharkiv police in respect of the theft and the robberies
(see paragraph 15 above), that she and the applicant had been staying in the
country house of Mr P. in Sevastopol. Mr P. had asked them to leave, which they
did. However, having nowhere to go, the applicant and Ms T. had returned to Mr P.’s
house in his absence. Late in the evening he and Ms S. had discovered their
presence there, and Mr P. attacked the applicant with a stick. The applicant
defended himself with an axe which happened to be at hand. According to Ms T., she
had heard sounds of a fight, but did not see what happened next. When leaving
the house, she had allegedly dropped the burning petroleum lamp by accident.
According to the information note on the
criminal proceedings’ progress, prepared by the Sevastopol City Court of Appeal
on 5 October 2012, the following events took place during the course of
the investigation:
-on 18 August 2004
the applicant wrote a confession addressed to the Head of the Nakhimivskyy
District Police Department of Sevastopol, and gave explanations regarding the
murder;
-on
30 August 2004 the applicant was questioned as a witness in respect of the
murder of Mr P. and Ms S.;
-on 31 August
2004 a criminal case was opened against the applicant on suspicion of the
double murder and destruction of property.
No documents or further details are available in the case file as
regards the above-mentioned investigative measures and events.
On 31 August 2004 the Sevastopol Prosecutor’s
Office appointed a lawyer, Mr K., for the applicant.
On the same date, the charges of double murder
and property destruction were officially brought against the applicant, his
procedural rights were explained to him, and he was questioned as an accused in
the presence of the appointed lawyer. The applicant confessed to having
inflicted injuries on the victims and to setting their property on fire, but
insisted that he had acted in self-defence and had had no intention of killing
them.
On 15 September 2004 the Leninskyy District
Court of Sevastopol (“the Leninskyy Court”) ordered the applicant’s detention
for seventy-two hours with a view to ensuring his availability for the
investigative measures associated with this criminal case.
On 19 October 2004 the Leninskyy Court, in a
hearing which the applicant attended, remanded him in custody as a preventive
measure pending trial. On 29 October 2004 the Sevastopol City Court of Appeal
upheld that ruling.
On 26 October 2004 a new lawyer, Mr Du., was
appointed for the applicant, replacing the one representing him earlier.
On the same date, the investigator conducted a reconstruction
of the crime with the participation of the applicant and his lawyer, two
attested witnesses and a forensic expert.
On 30 November 2004 the pre-trial investigation
was declared complete and the applicant was provided with access to the case
file.
On 17 January 2005 the Sevastopol City Court of
Appeal, sitting as a court of first instance, commenced the trial. The
applicant was present at the hearing.
On 21 January 2005 another hearing was
conducted, at which the applicant lodged the following requests: to have the
hearings audio-recorded; to have his father admitted as his representative in
the proceedings; and to have the first and second sets of criminal proceedings
against him joined into one case. The court allowed only the first request.
On 9 February 2005 the applicant complained during
the hearing that he had been ill-treated by the Kharkiv police following his
arrest on 10 August 2004.
On the same date, the court instructed the
Sevastopol Prosecutor’s Office to investigate the matter.
On 25 February 2005 the Sevastopol Prosecutor’s
Office passed this assignment to the Kharkiv Inter-District Prosecutor’s
Office.
On 13 April 2005 the Sevastopol City Court of
Appeal found the applicant guilty of double murder and property destruction and
sentenced him to life imprisonment, which was deemed to have started running on
11 August 2004. The court relied, in particular, on the statements of a
witness who had seen the applicant and Ms T. in the village of Katcha on
the evening on 2 August 2004, those of a witness who had discovered the fire
and the victims lying on the path near the burning building, and those of the
fire brigade. The court also took into consideration the forensic examination report,
according to which the saliva on several cigarette stubs found near the crime
scene could have belonged to the applicant, and the forensic medical
examinations of the victims. Both victims were found to have suffered multiple
fatal blows of considerable strength. At the court hearing, the applicant sought
the attendance of the ambulance doctor as a witness who could confirm that
Ms S. was still alive when discovered, but he later withdrew that request.
The applicant admitted having injured the victims with the back of an axe, but
maintained that he had had no intention of killing them and that he had acted
in self-defence. He also admitted having set the building on fire, but claimed that
his intention was to draw attention to the victims so that somebody could help
them. At the same time, the applicant complained that he had confessed due to
fear of revenge by the police. The court noted that the applicant had been
questioned by the prosecutor in the presence of his lawyer, which meant that
there was no pressure on him. It also relied on the ruling of the Sevastopol
City Prosecutor’s Office of 15 March 2005 (see paragraph 68 below).
According to the applicant, the appointed lawyer
had ceased assisting him after pronouncement of the verdict. The case file,
however, contains a copy of a cassation appeal prepared on the applicant’s
behalf by the lawyer appointed to represent him. The cassation appeal referred
to the alleged distortion of the facts of the case. Furthermore, the lawyer
submitted that the investigation into the applicant’s complaint of
ill-treatment had not been thorough enough.
The prosecutor also appealed against the
judgment, seeking mitigation of the sentence for the applicant. He submitted
that the murder in question had not been premeditated, but had taken place in
the heat of a dispute. Furthermore, the applicant had voluntarily confessed,
which should have had a mitigating effect on his sentence.
On 14 July 2005 the Supreme Court
upheld the judgment of 13 April 2005. On 3 March 2006 its ruling was served on
the applicant.
C. Alleged ill-treatment of the applicant and the investigation
thereof
According to the applicant, following his arrest
on 10 August 2004 he had been subjected to ill-treatment by the Kharkiv police.
The applicant did not specify the time or circumstances of his arrest.
According to him, he had been taken to the Merefa ITT, where several police
officers had beaten him with rubber truncheons on his legs and arms, had twisted
his arms behind his back while he was handcuffed and had hung him from an iron
bar. They had also allegedly twisted his genitals. As submitted by the
applicant, he had been in such pain that he fainted several times. He described
his injuries as follows: bruises and sores on the forehead, back of the head
and around the eyes, a split lip, and bruises on his back and the shoulders. His
requests for medical examination and assistance had allegedly been ignored.
As further submitted by the applicant, his
bruises and sores had healed by the time of his transfer from the Merefa ITT to
the Kharkiv SIZO.
On 21 August 2004, upon his arrival at the
Kharkiv SIZO, the applicant underwent a medical examination, which revealed no
injuries. During that examination he complained of periodic headaches.
According to the material in the case file, the
applicant first complained of ill-treatment during the court hearing on 9
February 2005 (see paragraph 56 above).
On 9 March 2005 the Kharkiv Inter-District
Prosecutor’s Office delivered a ruling refusing to institute criminal
proceedings in relation to the applicant’s allegation of ill-treatment, which
it considered unfounded.
It appears from the record of the 24 March
2005 hearing of the Sevastopol City Court of Appeal (the first-instance court
in the second set of criminal proceedings against the applicant) that on 15
March 2005 there was a further refusal to open a criminal case in respect of
the applicant’s allegation of ill-treatment, which was issued by the Sevastopol
City Prosecutor’s Office. As noted in the record, the ruling of 15 March 2005
was announced at this hearing and remained uncommented on by the applicant and his
lawyer.
Following a request by the Kharkiv District
Court of 2 September 2011, which was made in the context of the first set
of criminal proceedings against the applicant (see paragraphs 26 and 27 above),
the Kharkiv Inter-District Prosecutor’s Office carried out further investigations
into the applicant’s allegation of ill-treatment and on 24 September 2011
issued a refusal to open a criminal case. It noted, in particular, that at the
time of the events the applicant had not lodged any complaint with the prosecution
authorities in that regard.
The applicant objected to the refusal and was
informed that he was at liberty to challenge the ruling before the higher-level
prosecution authorities and courts. The applicant did not do so.
On 7 August 2012 the Kharkiv District Court
again asked the Kharkiv Inter-District Prosecutor’s Office to investigate the
applicant’s allegation of ill-treatment (see also paragraphs 35 and 36 above).
On 28 August 2012 the prosecutor applied to the court
for permission to question the applicant, who at that time was detained in the
Kharkiv SIZO. This application was allowed.
On 3 September 2012 the applicant was questioned
in respect of his allegation of ill-treatment, but refused to make any
statements.
On 6 September 2012 the Kharkiv Inter-District
Prosecutor’s Office again refused to institute criminal proceedings in respect
of the applicant’s allegation of ill-treatment.
On 20 September 2012 the Kharkiv Regional
Prosecutor’s Office quashed the rulings of 24 September 2011 and 6 September
2012.
On 25 September 2012 the applicant was questioned.
He submitted that, following his arrest on 10 August 2004, he had been placed
in a basement cell in the Merefa ITT. On 11 August 2004 he had been taken from
his cell to a room with a table and two chairs, where he had been beaten by
three men: one in police uniform and two others in civilian clothes. The
applicant gave a detailed description of their appearance, the way they had
ill-treated him and the injuries he had sustained (see paragraph 63 above). He
noted that the investigator had not ill-treated him, but had threatened that
his beatings would be repeated if he did not cooperate.
Also on 25 September 2012 the Kharkiv
Inter-District Prosecutor enquired of the Kharkiv SIZO administration whether
the applicant had had any injuries when he had arrived at the SIZO in August
2004 and whether any medical assistance had been provided to him.
On 27 September 2012 the head of the SIZO medical
unit replied that, upon the applicant’s arrival on 21 August 2004, he had been
examined by a doctor. The applicant had not had any injuries, was healthy and
had raised no complaints.
On 27 September 2012 the Kharkiv Inter-District
Prosecutor’s Office once again refused to institute criminal proceedings against
the Kharkiv police officials in respect of the applicant’s allegation of
ill-treatment, having discerned no corpus delicti in their actions.
On the same date the applicant was notified of
the aforementioned ruling. He was informed that he could challenge it before
the higher-level prosecution authorities or courts but he did not do so.
D. Conditions of the applicant’s detention
1. In the Sevastopol ITT
The applicant submitted that he had been detained
in the Sevastopol ITT from 18 October to 2 November 2004, from 10 November 2004
to 22 January 2005, from 2 to 10 February 2005, and from 18 March to
13 April 2005.
According to him, his cell there was severely
overcrowded (about thirty inmates instead of the official maximum of eight),
lacked natural light and was infested with insects. There was no hot water
supply. Detainees were allowed to take showers only once in three weeks. Outdoor
walks lasted for twenty minutes and did not take place every day. Furthermore,
there was an insufficient number of sleeping places for all detainees, who therefore
had to take turns to sleep. The toilet was not separated from the living area.
The cell had no table.
On 19 June 2009, 10 May 2011 and 25 January 2012
various documents of the Sevastopol ITT for 2004 and 2005 were destroyed upon
expiry of the respective time-limits for their storage.
Referring to the absence of documents, the
Government found it impossible to provide any factual details as to the
applicant’s detention in the Sevastopol ITT.
2. In the Kharkiv SIZO
The applicant was detained in the Kharkiv SIZO from
21 August to 25 September 2004, from 25 May 2005 to 14 February 2006, and
from 26 May 2011 onwards (according to the most recent information as of November
2012).
(a) The applicant’s account
The cell was located in a semi-basement infested
with rodents. It was extremely small, dark and damp, with a concrete floor, no
ventilation and no radio. The toilet was not separated from the living area. There
was no access to drinking water in the cell and no supply of essential hygiene requisites.
The daily walks lasted for forty minutes instead of one hour.
(b) The Government’s account
The applicant’s cell, like any other cell for
detainees serving a life sentence, was located on the first floor. All the
cells were equipped with an artificial ventilation system. Rat extermination was
carried out twice a year as might be required. In particular, rat extermination
had been carried out in November 2011. As regards access to drinking water, in
addition to the regular and centralised supply of water to washbasins, each
cell was equipped with a 10-litre cooler for boiled water supplied from
municipal utilities. All prisoners sentenced to life imprisonment were provided
with soap. The daily walks lasted for one hour.
The Government relied, in particular, on the
Report on the Sanitary and Epidemiological Inspection of the SIZO dated 2
February 2012. In addition to the aforementioned information, it was also noted
in the report that the SIZO population comprised 3,230 detainees whereas its
capacity was in fact 2,930 persons. The space per detainee was 2.1 square
metres.
Another report relied on by the Government concerned
the tap-water chemical analysis of 29 May 2012. It found the tap water in the
SIZO to be fully suitable for drinking.
3. In the Dnipropetrovsk SIZO
The applicant was detained in the Dnipropetrovsk
SIZO from 14 February to 1 March 2006, from 5 to 24 February 2007 and from
12 to 26 May 2011.
(a) The applicant’s account
The cell was located in a semi-basement and had
a concrete floor. The cell was extremely small, dark and damp, without adequate
ventilation or access to daylight. The toilet was not separated from the living
area and was close to the table. Prisoners were handcuffed during their daily
walks and cell searches. The nutrition was poor and did not vary.
(b) The Government’s account
The applicant was held in several different
cells on the ground floor, namely:
-cell no. 3 k - 6.3 sq. m (2 beds);
-cell no. 03 - 6.3 sq. m (2 beds);
-cell no. 05 - 6.3 sq. m ( 2 beds);
-cell no. 02 - 6.3 sq. m (2 beds);
-cell no. 4 k - 6.4 sq. m (2 beds);
-cell no. 14 k - 6.0 sq. m (solitary confinement cell);
-cell no. 11 k - 6.1 sq. m (2 beds)
Cells for life prisoners had a concrete floor
with a painted surface. If inmates did not have bedroom slippers, the SIZO
administration provided them. There was artificial ventilation, and the level
of humidity was within the standards. The cells had windows and were equipped
with functioning electric lamps. Toilets in each cell were separated by a solid
partition. Detainees received nutrition in accordance with legally stipulated norms.
Handcuffs were used at all times when a life prisoner was taken out of his
cell.
The Government based their account on the information
note issued by the SIZO administration on 20 September 2012.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The relevant extract from the Internal
Regulations of the Penal Institutions of 25 December 2003 regarding the
handcuffing of life prisoners, in particular, can be found in the judgment
concerning the case of Kaverzin v. Ukraine (no. 23893/03, § 51, 15 May
2012).
III. RELEVANT INTERNATIONAL MATERIAL
Relevant Council of Europe and other material
establishing standards for conditions of detention can be found in the judgment
in the case of Davydov and Others v. Ukraine (nos. 17674/02 and
39081/02, §§ 101-103, 1 July 2010).
The European Committee for the Prevention of
Torture and Inhuman and Degrading Treatment and Punishment (“the CPT”) visited
the Dnipropetrovsk SIZO during the visit to Ukraine it carried out from 9 to 21 September
2009.
The relevant parts of the CPT report of 23 November
2011 (CPT/Inf (2011) 29) read as follows:
“109. When visited by the delegation, the SIZO in
Dnipropetrovsk was holding 2,900 prisoners (including 220 women and 63
juveniles) for an official capacity of 3,456. The prisoner population comprised
26 life-sentenced prisoners. The SIZO served as a transit point for prisoners
being transferred between penitentiary establishments and had a monthly
turnover of some 5,000 inmates.
Prisoners were accommodated in 10 buildings of different age
and configuration. Given that the visit to the establishment was of a targeted
nature - focusing on newly arrived prisoners and life-sentenced prisoners - the
delegation received an impression of material conditions only in some of the
buildings.
110. In a detention block which had recently been renovated
(units 6 and 7), cells measuring some 7 m˛ were holding usually 2, but
occasionally 3, prisoners. There was enough natural light coming through the
cells’ large windows, and access to artificial light and ventilation also appeared
to be adequate. Each cell was equipped with a partitioned toilet and sink. This
block, referred to as the “Euro-standard” block, was considered by the
administration as a model.
In the four-storey building accommodating female prisoners
(unit 10) and some of the male remand prisoners (unit 9), the delegation
observed that the cells were less overcrowded than in the Kyiv SIZO (e.g. a
cell measuring some 15 m˛ was holding 6 female prisoners; there were 13
prisoners in a cell of 33 m˛). The cell equipment (double-bunk beds, lockers, a
partitioned sanitary annexe) did not call for any particular comments. However,
it was a matter of concern to the delegation that all cells’ windows were
fitted with a solid metal shutter which considerably limited access to natural
light. The CPT welcomes the immediate steps taken by the management of the SIZO
to remove the metal shutters from all the cell windows in units 9 and 10,
following a remark by the delegation at the end of the visit to the SIZO in
Dnipropetrovsk.
The CPT recommends that, at the Dnipropetrovsk SIZO, efforts be
made to decrease overcrowding, the objective being to offer a minimum of 4 m˛
of living space per prisoner in multi-occupancy cells.”
During the visit to Ukraine it carried out from
29 November to 6 December 2011, the CPT delegation also visited the
Kharkiv SIZO.
The relevant parts of the CPT report of 14
November 2012 (CPT/Inf (2012) 30) read as follows:
“... conditions of detention were quite simply appalling in
many of the ... detention units of the [Kharkiv SIZO]. Numerous cells were in a
poor state of repair and had only very limited access to natural light. In
addition, the CPT is concerned about the severe overcrowding observed in a
number of detention units of [the establishment]. At the time of the visit, ...
the Kharkiv SIZO [accommodated 3,415 prisoners (official capacity: 2,808
places).
The Committee acknowledges the efforts made by the Ukrainian
authorities to reduce overcrowding in the [SIZO] visited. However, despite the
fact that more than 1,000 prisoners had recently been transferred from the
Kharkiv SIZO to other establishments, the situation remains very problematic ...
(in particular in detention units for male adults).
By way of example, at the Kharkiv SIZO, the delegation found a
cell measuring some 45 m˛ which was accommodating 44 male adult prisoners at
the time of the visit (and reportedly had on occasion held even more). There
were only 28 beds available which meant that prisoners were obliged to sleep in
turns. They also had to store their personal belongings and wash and dry their
laundry inside the cell. Some prisoners had been held in such conditions for
several years.
The CPT must recommend once again that steps be taken at the ...
Kharkiv [SIZO] and, where appropriate, in other penitentiary establishments in
Ukraine to ensure that:
- every prisoner is provided with his own bed (and clean
bedding);
- strenuous efforts are made to decrease the overcrowding and
to distribute prisoners more evenly amongst the available accommodation, the
objective being to offer a minimum of 4 m˛ of living space per prisoner;
- prisoners have adequate access to natural light and adequate
ventilation in their cells.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION ON ACCOUNT OF THE ALLEGED ILL-TREATMENT OF THE APPLICANT AND THE INVESTIGATION
THEREOF
The applicant complained under Article 3 of the
Convention that he had been ill-treated by the police following his arrest on
10 August 2004 and that there had been no effective investigation into the
matter. The provision relied on reads as follows:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
The applicant maintained his account of the
events as summarised in paragraph 63 above. He alleged that his ill-treatment
at the hands of police had resulted in numerous bruises and sores. In his reply
to the Government’s observations, he also submitted that the ill-treatment had
triggered periodic headaches. The applicant further contended that there had
been no meaningful efforts to establish the truth or to punish those
responsible.
The Government disagreed. They argued that the
applicant’s allegation was not supported by any evidence and that it had been
duly investigated by the domestic authorities. Furthermore, they emphasised
that, although the applicant had been legally represented, his complaint
concerning his alleged beating by the police had not been raised until
9 February 2005, during his trial in the second set of criminal
proceedings against him, that is to say about six months after the alleged
ill-treatment.
In reply to this last-mentioned argument of the
Government, the applicant submitted that, although a lawyer had been appointed
for him on 31 August 2004, communication with him had taken place only during
the investigative measures and with the investigator present. Accordingly, the
applicant argued that he had not felt secure enough to raise the ill-treatment
complaint until the court hearing on 9 February 2005.
The Court has stated on many occasions that
Article 3 enshrines one of the most fundamental values of democratic societies.
Even in the most difficult circumstances, such as the fight against terrorism
and organised crime, the Convention prohibits in absolute terms torture and
inhuman and degrading treatment or punishment, irrespective of the conduct of
the person concerned (see, among many other authorities, Labita v. Italy
[GC], no. 26772/95, § 119, ECHR 2000-IV, and Selmouni v. France [GC],
no. 25803/94, § 95, ECHR 1999-V).
Ill-treatment must attain a minimum level of
severity if it is to fall within the scope of Article 3. The assessment of this
minimum is relative: it depends on all the circumstances of the case, such as
the duration of the treatment, its physical and mental effects and, in some
cases, the sex, age and state of health of the victim (see Labita, cited
above, § 120).
In the present case the applicant made fairly
detailed submissions as to the methods of ill-treatment employed by the police
officers against him. He had allegedly suffered numerous blows with rubber
truncheons to his legs and arms, had his arms twisted behind his back while he
was handcuffed, and had been hung from an iron bar. His alleged ill-treatment
also included twisting of his genitals (see paragraph 63 above).
The Court considers that if the alleged
treatment of the applicant happened as described by him, it would constitute
ill-treatment in violation of Article 3 of the Convention. The question is,
however, whether there is sufficient information before the Court that such
physical ill-treatment took place.
The Court reiterates that allegations of
ill-treatment must be supported by appropriate evidence (see Labita, cited
above, § 121). In assessing evidence, the Court has generally applied the
standard of proof “beyond reasonable doubt” (see Ireland v. the United
Kingdom, 18 January 1978, § 161 Series A no. 25). However, proof may follow
from the coexistence of sufficiently strong, clear and concordant inferences or
of similar unrebutted presumptions of fact. Where the events in issue lie
wholly, or in large part, within the exclusive knowledge of the authorities, as
in the case of persons under their control in custody, strong presumptions of
fact will arise in respect of injuries occurring during such detention. Indeed,
the burden of proof may be regarded as lying with the authorities to provide a
satisfactory and convincing explanation (see Ribitsch v. Austria, 4 December
1995, § 34 Series A no. 336, and Salman v. Turkey [GC], no. 21986/93,
§ 100, ECHR 2000-VII).
However, some proof of the existence of
injuries is indispensable (see, for example, Hristovi v. Bulgaria, no.
42697/05, §§ 73-78, 11 October 2011, and Igars v. Latvia (dec.), no.
11682/03, § 67, 5 February 2013).
Indeed, in the context of an ill-treatment
allegation, the mere coherence of such an allegation cannot in itself prove the
veracity of an applicant’s words, and a person with a vivid imagination, good
memory and logical skills may invent an almost perfect story about something
which has never happened (see Buntov v. Russia, no. 27026/10,
§ 153, 5 June 2012).
. The
Court notes that in the present case there is no immediate indication that the
applicant sustained any injuries in police custody.
It cannot be ruled out that some bruises and
sores could have healed during the period from 10 to 21 August 2004, while the
applicant remained in the Merefa ITT, supposedly without any medical
examination. As to the periodic headaches, of which he complained to the SIZO
doctors on 21 August 2004, the Court notes that the applicant never
suggested any connection between those headaches and his alleged ill-treatment.
The first and only time when he made such a hint was in his reply to the Government’s
observations in the proceedings before the Court (see paragraph 102 above).
The Court cannot therefore attribute the
absence of any evidence in support of the applicant’s ill-treatment allegation
to the authorities alone.
It further notes in this connection that the
applicant never sought to be examined by a forensic medical expert. Moreover,
he waited for six months before voicing his complaint at domestic level,
although for more than five months of that period he was legally represented
(see paragraphs 47, 56 and 66 above).
Thus, according to the applicant, he could not
complain to his lawyer because communication between them had taken place only
in the investigator’s presence (see paragraph 104 above). The Court notes,
however, that the applicant never complained - either in the domestic
proceedings or before the Court - about any restrictions on communication with
the lawyer.
The Court accepts that an applicant might be
discouraged from voicing his allegations by the very fact of being under the control
of those whom he was accusing of ill-treatment (see Nadrosov v. Russia,
no. 9297/02, § 33, 31 July 2008). However, in the present case
the applicant did not remain under the control of the Kharkiv police or
prosecution authorities for the entire time, since he was transferred on
several occasions to Sevastopol, where the second case against him was being
investigated. The Court notes that the applicant never complained about any
ill-treatment or pressure from the Sevastopol investigator. It is therefore not
clear what prevented the applicant from raising the ill-treatment allegation
before the Sevastopol prosecution authorities whilst he was involved in the
investigative activities in Sevastopol (on at least three occasions before
9 February 2005 - see paragraph 84 above).
Finally, even if the applicant felt secure only
at court hearings, as submitted by him, it is not clear why he did not complain
of his ill-treatment during the hearing in the Leninskyy Court on 19 October
2004 (see paragraph 50 above) or during the hearings of 17 and 21 January
2005 in the Sevastopol City Court of Appeal (see paragraphs 54 and 55 above).
The Court notes that the applicant did submit a number of requests at the
last-mentioned hearing of 21 January 2005. However, he waited for another
nineteen days before lodging his ill-treatment complaint (see paragraphs 55 and
56 above).
In sum, the Court considers that there is no
reasonable justification for the applicant having taken such a long time to
make a complaint (see and compare with Khayrov v. Ukraine, no. 19157/06,
§ 55, 15 November 2012, and Gavula v. Ukraine, no. 52652/07, § 60,
16 May 2013).
The Court also notes that the applicant failed to
produce any indirect evidence corroborating his allegations, such as eyewitness
statements (contrast, for example, Muradova v. Azerbaijan,
no. 22684/05, §§ 51-52 and 108, 2 April 2009) or any documents
showing that he had entered the police premises in good health but left them
having sustained injuries (see Selmouni, cited above, § 87, with further
references).
Having regard to the above considerations, the
Court finds that the applicant failed, both before the domestic authorities and
the Court, to make out his claim that he was ill-treated as alleged. It follows
that his complaints under Article 3 of the Convention are manifestly
ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4
of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION ON ACCOUNT OF THE CONDITIONS OF THE APPLICANT’S DETENTION
The applicant further complained under Article 3
of the Convention about the conditions of his detention in the Sevastopol ITT,
the Dnipropetrovsk SIZO and the Kharkiv SIZO.
A. Admissibility
The Government submitted that the applicant had
not exhausted the domestic remedies as regards his complaints about the
conditions of his detention in the Dnipropetrovsk and Kharkiv SIZOs. They noted
that he could have raised this complaint before the public prosecutor in charge
of the supervision of general lawfulness in penal institutions but had not done
so. Any decision taken by the prosecutor could further be challenged before the
domestic courts.
The applicant contested the effectiveness of
the remedy cited, with reference to the Court’s case-law.
The Court notes that it has already dismissed
similar objections by the Government on a number of occasions, as the problems
arising from the conditions of detention in Ukrainian places of detention were
of a structural nature and no effective remedy was available in this respect
(see, for a recent case-law reference, Komarova v. Ukraine, no. 13371/06, § 50, 16 May 2013). The Court
sees no reason to depart from that finding in the present case and therefore
considers that this complaint cannot be rejected for failure to exhaust
domestic remedies.
The Court further notes that this complaint is
not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It is not inadmissible on any other grounds. The Court therefore
declares it admissible.
B. Merits
1. The parties’ submissions
The applicant maintained his description of the
conditions of his detention as summarised in paragraphs 84-85, 89 and 94 above.
The Government contested his allegations
regarding the conditions of detention in the Kharkiv and Dnipropetrovsk SIZOs
as inaccurate, relying instead on their own account (see paragraphs 90-92 and
95-97 above). As to his detention in the Sevastopol ITT, the Government
submitted that they were not in a position to comment on the merits of that
complaint, given that they had no pertinent documents at their disposal (see
paragraphs 86 and 87 above).
2. The Court’s assessment
The Court reiterates that, under Article 3 of
the Convention, the State must ensure that a person is detained in conditions
which are compatible with respect for his human dignity and that the manner and
method of execution of the measure do not subject him to distress or hardship
of an intensity exceeding the unavoidable level of suffering inherent in
detention (see Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI).
(a) Conditions of the applicant’s detention in the
Sevastopol ITT
In the absence of any evidence proving
otherwise, the Court considers it established that the applicant was detained in
the Sevastopol ITT, for a total of ninety-six days during the three periods in
2004 and 2005 as indicated by him (see paragraphs 84, 86 and 87 above).
The Court notes that in the case of Yakovenko
v. Ukraine it has already examined a complaint about the conditions of
detention in the Sevastopol ITT pertaining to a similar time frame to the
complaint in the present case (no. 15825/06, § 89, 25 October 2007). In the
cited case the Court found a violation of Article 3 of the Convention on
account of, in particular, overcrowding, sleep deprivation and lack of natural
light and air.
The Court observes that similar grievances have
been raised in the present case. It considers them to be sufficiently substantiated
and plausible.
Accordingly, the Court concludes that there has
been a violation of Article 3 of the Convention in respect of the conditions of
the applicant’s detention in the Sevastopol ITT.
(b) Conditions of the applicant’s detention in the
Kharkiv SIZO
The Court notes that problem of severe overcrowding
in the SIZO was established by the CPT, which visited the Kharkiv SIZO in
November and December 2011, that is to say while the applicant was detained
there (see paragraphs 97 and 98 above).
The Court further observes that in February
2012, while the applicant remained in the SIZO, the domestic authorities also
acknowledged this problem (see paragraph 91 above).
Furthermore, the findings of the CPT report are
concordant with the applicant’s allegations as regards the generally unsatisfactory
conditions of detention, the poor state of repair and the limited access to natural
light (see paragraph 98 above).
The combination of the above-mentioned factors,
which the applicant endured for a significant period of time (for at least two
years and four months if his detention in the Kharkiv SIZO is calculated as
lasting until November 2012, or longer if he remained there thereafter - see
paragraph 88 above), is sufficient to enable the Court to conclude that the
conditions of his detention in the Kharkiv SIZO amounted to inhuman and
degrading treatment contrary to the requirements of Article 3 of the
Convention. There has accordingly been a violation of that Article on this
account, too.
(c) Conditions of the applicant’s detention in the
Dnipropetrovsk SIZO
The Court notes that the applicant was detained
in the Dnipropetrovsk SIZO on three occasions in 2006, 2007 and 2011, for a
total of forty-eight days.
It is not disputed between the parties that the
applicant spent most of his time detained in a cell shared with another inmate,
which measured some six square metres. Each inmate therefore had some three
square metres of personal space available to him, which is less than the
minimum standard recommended by the CPT for Ukraine (see Davydov and Others,
cited above, § 107). In the light of its case-law (see, for example, Trepashkin
v. Russia, no. 36898/03, § 92, 19 July 2007; Melnik, cited above, §
103; and Visloguzov v. Ukraine, no. 32362/02, § 46, 20 May 2010), the
Court finds that the lack of personal space afforded to the applicant in
detention in and of itself raises an issue under Article 3 of the Convention,
regard being had, particularly, to the considerable restrictions on freedom of
movement and outside exercise.
The Court further notes that the Government’s assertions
that the ventilation, lighting and sanitary arrangements in the SIZO were
adequate (see paragraph 96 above) are not supported by sufficient evidence and
are couched in general terms. They do not contain responses to the applicant’s
concrete and consistent allegations to the contrary.
Furthermore, the applicant’s allegations are
supported by the findings of the CPT, whose delegation visited the
Dnipropetrovsk SIZO in September 2009 (see paragraphs 97 and 98 above).
Lastly, the Court notes that it has examined
and found a violation of Article 3 in respect of similar allegations regarding
the conditions of detention in that SIZO in the case of Iglin v. Ukraine,
in which the applicant was detained there at about the same time as the
applicant in the present case (no. 39908/05, §§ 51-56, 12 January 2012).
Consequently, the Court concludes that the conditions
of the applicant’s detention in the Dnipropetrovsk SIZO were inhuman and
degrading. There has therefore been a violation of Article 3 of the Convention
in this aspect as well.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AS REGARDS THE LENGTH OF THE FIRST SET OF CRIMINAL PROCEEDINGS
AGAINST THE APPLICANT
The applicant also complained that the length
of the first set of criminal proceedings against him had been excessive. He
relied on Article 6 § 1 of the Convention reading as follows in the
relevant part:
“In the determination of ... any criminal charge against him,
everyone is entitled to a ... hearing within a reasonable time by [a] ...
tribunal ...”
A. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
The applicant submitted that there had been no
justification for the length of the first set of criminal proceedings against
him. He contrasted it with the second set, which concerned a double murder and
destruction of property and which had lasted for less than two years. The
applicant observed that the proceedings in the first case regarding an incident
of theft and two incidents of robbery - where the authorities claimed to have
sufficient direct evidence against him, including eyewitness statements from the
victim - had lasted for about four times as long.
The applicant next pointed out that the first
set of proceedings had been at a complete standstill for about six years, from
May 2005 to March 2011. He submitted that this delay had remained unexplained
by the authorities. His participation in the second set of proceedings could not
explain it, as the verdict in the second set had been pronounced on 13 April
2005 and had become final on 14 July 2005.
The Government contended that the length of the
first set of proceedings was reasonable.
They noted that the case was complex, as it had
concerned three different incidents of theft and robbery, and had involved two
accused. Furthermore, the applicant’s participation in the concurrent second
set of proceedings had also caused certain delays.
The Government further submitted that some delays
had been caused by the parties’ behaviour: namely, the non-attendance of the
victims and a witness, and the applicant’s prolonged studying of the case file.
The Court reiterates that the reasonableness of
the length of proceedings must be assessed in the light of the circumstances of
the case and with reference to the following criteria: the complexity of the
case, the conduct of the applicant and the conduct of the relevant authorities
(see, among many other references, Pélissier and Sassi v. France [GC],
no. 25444/94, § 67, ECHR 1999-II).
The Court notes that the first set of criminal
proceedings against the applicant in the present case lasted for more than nine
years and has not yet been completed.
Although the case involved three incidents and
two co-accused, it does not appear to be particularly complex. There appear to
have been no significant delays in the proceedings caused by the applicant’s
behaviour. At the same time, the Court is mindful of the unexplained standstill
in the proceedings from December 2005 to July 2009 (see paragraph 21 above),
which can only be attributed to the authorities.
The Court has frequently found violations of
Article 6 § 1 of the Convention in cases raising issues similar to the one in
the present case (see, for example, Yeloyev v. Ukraine,
no. 17283/02, 6 November 2008, and Nakonechnyy v. Ukraine,
no. 17262/07, 26 January 2012).
Having examined all the material submitted to
it, the Court considers that the Government have not put forward any fact or
argument capable of persuading it to reach a different conclusion in the
present case. Having regard to its case-law on the subject, the Court considers
that in the instant case the length of the proceedings was excessive and failed
to meet the “reasonable time” requirement.
There has accordingly been a breach of Article
6 § 1 of the Convention.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant also raised a number of other
complaints under Articles 5, 6, 8, 10, 13 and 14 of the Convention.
In the light of all the material in its
possession, and in so far as the matters complained of are within its
competence, the Court finds that they do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols. It follows that this part of the application must be rejected as
being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the
Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of
the Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
The applicant claimed EUR 30,000 in respect of
non-pecuniary damage.
The Government contested this claim.
The Court considers that the applicant suffered
non-pecuniary damage which cannot be compensated for by the mere finding of a
violation of his Convention rights. Having regard to the circumstances of the
case and ruling on an equitable basis, the Court awards him EUR 8,000 in
respect of non-pecuniary damage, plus any tax that may be chargeable on that
amount.
B. Costs and expenses
The applicant also claimed EUR 800 for the
costs and expenses incurred before the Court.
The Government contested this claim as it was not
supported by documents.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard
being had to the fact that the applicant had been granted legal aid and the fact that
he did not provide any evidence in support of his claim, the Court makes no
award.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY,
1. Declares the complaints under Article 3 (as
regards the conditions of the applicant’s detention) and Article 6 (as regards
the length of the first set of proceedings) admissible and the remainder of the
application inadmissible;
2. Holds that there has been a violation of
Article 3 of the Convention in respect of the conditions of the applicant’s
detention in the Sevastopol ITT;
3. Holds that there has been a violation of
Article 3 of the Convention in respect of the conditions of the applicant’s
detention in the Kharkiv SIZO;
4. Holds that there has been a violation of
Article 3 of the Convention in respect of the conditions of the applicant’s
detention in the Dnipropetrovsk SIZO;
5. Holds that there has been a violation of
Article 6 § 1 of the Convention in respect of the length of the first set of
criminal proceedings against the applicant;
6. Holds
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 8,000 (eight thousand euros),
plus any tax that may be chargeable, in respect of non-pecuniary damage;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above amount
at a rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
7. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 28 November
2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Mark Villiger
Registrar President
